BILL NUMBER:S7130

TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to accrual of certain causes of action

PURPOSE OF BILL:

To amend the statute of limitations for medical, dental or podiatric
malpractice to include a discovery of injury rule, allowing the
current two and half year statute of limitations to run from the date
an injured patient discovers, or should have discovered, that their
injury was caused by malpractice. However, in no event shall a
malpractice action be filed more than ten years after the date of the
alleged malpractice.

SUMMARY OF PROVISIONS OF BILL:

Amends Section 214-a of the Civil Practice Law and Rules to accomplish
the above purpose.

JUSTIFICATION:

New York's current statute of limitations as to medical malpractice is
two and one half years from the date of the act, omission or failure
complained of or last treatment where there is continuous treatment.
It is not only the shortest negligence statute in the State of New
              

York, except for claims against municipalities, but works undue
hardship in its application and interpretation.

The courts in this State have consistently interpreted the accrual of
a cause of action for negligence as occurring at the time the act
complained of occurred. In medical malpractice cases, arising out of a
misdiagnosis or the failure to diagnose, the injury suffered by the
victim of such a tort is often discovered until the well after the
statute of limitation has expired.

This injustice is sometimes seen when a patient discovers the growth
of a cancerous tumor. For example, a patient is seen by a physician
for rather general complaints and a series of tests are ordered,
including an x-ray. The patient is diagnosed as having no illness.
Several years later the patient is diagnosed as having a spot on the
lung by a different physician. Review of the original x-ray films show
the presence of a spot on the earlier film. Time is of the essence in
the treatment of cancer if one is to get a favorable chance at long
term survival. If more than two and one half years have passed from
the date of the original x-ray (assuming no continuous course of
treatment), the patient's claim is time barred, despite the fact that
the patient could not have reasonably known of the existence of the
medical misconduct.

Another example of this type of injustice occurs when a patient has
been exposed to inadequate hygienic conditions, i.e. is infected with
hepatitis-C or HIV by an inadequately sterilized, re-used, or
otherwise "dirty" syringe. The infected patient may in fact be totally
asymptomatic for years after the two and one half year statute of
limitations has expired. However, if symptoms (and hence discovery of


the medical misconduct) become apparent only after the expiration of
the statute, the patient nevertheless has no legal recourse.

The current statute of limitations is based upon an archaic rule that
a cause of action sounding in negligence accrues at the time of the
negligent act. The better rule and the one most widely adopted in
other jurisdictions, such as New Jersey, North Carolina, and claims
against the United States of America arising under the Federal Tort
Claims Act, is one which recognizes that some injuries do not manifest
themselves at the time of the negligent act, and which permits a
victim of medical malpractice to discover his or her injury before
their statutory period to begin suit runs. New York has dealt with
this problem in the field of Toxic Torts. In 1986 the Legislature
enacted CPLR Section 214-c. That section set forth a discovery rule
for injuries suffered as a result of exposure and implantation (1992
amendment) of foreign substances. The justification for the passage of
214-c was that individuals who were exposed to toxic substances did
not show any adverse health effects until after the three (3) year
general negligence statute of limitations had run. The issue was
revisited in 1992 when that act was amended to include implantation
within "exposure" to remedy an injustice to victims of breast
implants.

This bill would remove this gaping loophole in the law, which allows a
patient's rights to expire prior to the patient even knowing that she
had any rights in the first place. The bill would certainly not
mandate that any claim be deemed meritorious - instead, the bill would
merely prevent the statute of limitations from being used as an unfair
and inequitable shield front professionally negligent medical
misconduct.

LEGISLATIVE HISTORY:

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

Undetermined.

EFFECTIVE DATE:

Immediately.